Tuttle v. Muenks

• Decision Date: 10 March 1998
• Docket Number: No. WD,WD
• Citation: 964 S.W.2d 514
• Court: Missouri Court of Appeals
• Parties: David R. & Deborah A. TUTTLE, Appellants, v. Sylvester W. & Mary Lou MUENKS, Defendants, and Roadway Express, Inc., Respondent. 54014.

Page 514

964 S.W.2d 514

David R. & Deborah A. TUTTLE, Appellants, v. Sylvester W. & Mary Lou MUENKS, Defendants, and Roadway Express, Inc., Respondent.

No. WD 54014.

Missouri Court of Appeals,

Western District.

Submitted Dec. 9, 1997.

Decided March 10, 1998.

Fred R. Bunch, Clinton, for appellant.

Scott W. Mach, Kansas City, for respondent.

Before ULRICH, C.J., P.J., and SMART and LAURA DENVIR STITH, JJ.

SMART, Judge.

David R. Tuttle and Deborah A. Tuttle were injured in an automobile accident when a car driven by Sylvester W. Muenks struck another car, sending that car into the path of the Tuttle automobile. They filed suit against Mr. Muenks and against Roadway Express, Inc. ("Roadway"), Mr. Muenks' employer. The claim against Roadway was based upon the theory of respondeat superior. Roadway moved for summary judgment, contending that it was entitled to judgment as a matter of law, because there was no substantial evidence that Muenks was in the course and scope of his employment for Roadway at the time of the collision. The trial court granted Roadway's motion for summary judgment. The Tuttles appeal, claiming that the trial court erred in granting Roadway's motion because genuine issues of material fact exist as to whether Mr. Muenks was acting in behalf of Roadway at the time of the accident. Because we find that there are genuine issues of material fact as to whether Mr. Muenks was acting within the scope and course of his employment at the time of the accident, we reverse the judgment of the trial court.

On Friday, September 6, 1991, David R. Tuttle was traveling home from work. He was driving west on Highway 50 near Jefferson City. His wife, Deborah, was a passenger in the car. When a vehicle driven by Sylvester Muenks rear-ended the vehicle traveling in front of it, that vehicle was forced into the path of the Tuttle vehicle, causing a collision which resulted in injuries to Mr. and Mrs. Tuttle.

Mr. Muenks was an employee of Roadway. He was employed by Roadway in its Sedalia, Missouri branch and was paid by the hour for making deliveries. At the time that Mr. Muenks was involved in the accident, he was not on the clock. Mr. Muenks was driving his own vehicle. Mr. Muenks intended to pick up his paycheck at Roadway's Jefferson City office, and to drop off papers at the office. Mr. Muenk was involved in the collision before he reached either his home or the Jefferson City office.

On September 9, 1993, before the lawsuit was filed, Mr. Muenks gave a sworn statement. He was asked questions concerning the collision and his employment with Roadway. The statement, attached to the Tuttles' response to Roadway's motion for summary judgment, contained the following:

Q. Okay. When you left the terminal, did you make any stops anywhere?

A. No.

Q. When you were on your trip, were you intending to make any stops anywhere?

A. No--well, yes. I was going--I was going through the terminal in Jeff Q. So you were going to stop at the terminal in Jeff City?

City. My home office is in Jeff City. That's where I was going--heading for Jeff City--I mean, to the terminal to the--see, my bills go to Jeff City and I just leave papers off there in Jeff City. That's where I go, right there--it's just right there--it's just--if I'd have been approximately a mile further at this turnoff, St. Martin's turnoff, it goes right there to Jeff City terminal.

A. Right.

Q. And what was the purpose of you stopping there?

A. To leave paperwork.

Q. What kind of paperwork?

A. Billing, delivery receipts.

Q. Okay. I don't know much about trucking so--

A. This is delivery receipts. In other words, when you deliver to a person, you have a receipt they sign and--see, we use signed by the truck--on Friday nights I bring the paperwork along with me.

Q. So was this all of the paperwork for all of the activity that had taken place at the Sedalia terminal that week, or for that day or what?

A. That day.

Q. For that day. All right. So all of the trucking activity for Roadway that occurred that day in Sedalia, you had that paperwork with you and you were coming by the terminal or the office in Jeff City and were going to drop that off; is that right?

A. Right, right.

* * * *

Q. Was it routine for you to--like on Fridays to deliver this paperwork by Jeff City?

A. Yes, it is.

Q. Did they provide any sort of compensation to you for that?

A. No. It's my--I bring the paperwork along every Friday night.

Q. Done that for--

A. Ever since I been there. Monday morning--Monday or Sunday evening when I go up, I pick up the bills and take them along with me.

Q. And they depend on you to do that?

A. Right.

At a deposition taken on May 9, 1996, Mr. Muenks was asked additional questions about his delivery of paperwork to Roadway. He testified he normally took paperwork to the Jefferson City terminal at the end of the week. The paperwork from the Sedalia terminal was never mailed, but was either delivered by the drivers or by Mr. Muenk.

Steven Hodges, an employee who worked at the Jefferson City terminal at the time of the collision, stated in an affidavit that Mr. Muenks routinely dropped off paperwork to the Jefferson City terminal on Friday evenings. The paperwork delivered by Mr. Muenks would be entered into the system to keep track of the freight shipped through the Sedalia terminal. A somewhat different emphasis was provided in the affidavit of Marty Gooch, the manager of the Roadway terminal in Sedalia at the time of the collision. Mr. Gooch stated that the general business practice of Roadway was to put documents in an eastbound truck or to have Mr. Muenks fax copies to the Jefferson City office. Mr. Gooch stated that it was not part of Mr. Muenks' job duties to drop off documents at the Jefferson City terminal.

The Tuttles filed their petition for damages claiming that Mr. Muenk was acting within the scope and course of his employment for Roadway when the collision occurred. Roadway's motion for summary judgment asserted that the Tuttles could not prove all the elements to establish a claim under the doctrine of respondeat superior. The trial court granted Roadway's motion, stating:

The court finds upon the defendant's motion and the suggestion of counsel that summary judgment is this cause is proper and that the defendant Roadway has established that it is entitled to judgment as a matter of law. There are no material facts in controversy and the court finds that defendant Muenks was not acting The Tuttles appeal.

within the scope and course of his employment with Roadway Express, Inc. at the time of the accident and that the circumstances plead do not constitute a special exception to the going and coming rule set forth in Logan v. Phillips, 891 S.W.2d 542 (Mo.App.1995).

SUMMARY JUDGMENT

Appellate review of a summary judgment is a de novo review. Rice v. Hodapp, 919 S.W.2d 240, 243 (Mo. banc 1996). This court reviews the record in the light most favorable to the party against whom the judgment was entered, according that party all reasonable inferences drawn therefrom. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The moving party bears the burden of establishing that it is entitled to judgment as a matter of law. Id. at 382. Evidence in the record presenting a genuine issue of material fact defeats a movant's right to summary judgment. Id. A genuine issue "implies that the issue, or dispute, must be a real and substantial one--one consisting not merely of conjecture, theory and possibilities." Id. at 378. Therefore, the dispute must not be simply argumentative, frivolous or imaginary. Id. at 382.

A defendant can establish the right to judgment as a matter of law by showing any of the following: (1) that the facts negate an essential element of the plaintiff's claim; (2) that the non-movant, after an adequate period of discovery, has not produced and cannot produce evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements; or (3) that there is no genuine dispute as to any of the elements of a properly pleaded affirmative defense. Id. at 381. We take as true the facts that are set out in support of the motion for summary judgment unless they are in some way contradicted by the non-moving party's response to the motion. Id. at 376. The non-moving party cannot rely upon mere allegations and denials of the pleadings but instead must use affidavits, depositions, answers to interrogatories, or admissions on file to demonstrate that a genuine issue of material fact exists for trial. Reeves v. Keesler, 921 S.W.2d 16, 19 (Mo.App.1996).

RESPONDEAT SUPERIOR

In their sole point, the Tuttles argue that the trial court erred in granting summary judgment to Roadway because a genuine issue of material fact exists as to whether Mr. Muenks was acting within the scope and course of his employment at the time of the collision. The Tuttles contend that there is a genuine issue of material fact as to the significance of the paperwork that was being delivered by Mr. Muenk. They contend that the paperwork generated at the Sedalia terminal had to get to the Jefferson City terminal and that without this paperwork, Roadway could not properly manage to run its business. Roadway contends that there is no genuine issue of material fact remaining and that the "going and coming" rule precludes a finding of liability on its part. Roadway claims that neither of the exceptions to the rule, the "special errand" exception or the "dual purpose" exception is applicable in this case.

Under the doctrine of respondeat superior, an employer is held responsible for the misconduct of an employee where that employee is acting within the course and scope of his employment. McHaffie By & Through McHaffie v. Bunch, 891 S.W.2d 822, 825 (Mo. banc 1995). The liability on the part of an employer attaches despite the absence of any negligence on the part of the...